{
  "question": "Does the new EU Product Liability Directive cover AI apps and chatbots, and what evidence will an AI company need if someone says its AI caused them harm?",
  "slug": "does-the-new-eu-defective-products-directive-cover-ai-apps-and-chatbots",
  "url": "https://www.rightshold.com/answers/does-the-new-eu-defective-products-directive-cover-ai-apps-and-chatbots",
  "short_answer": "Yes. Directive (EU) 2024/2853 says software is a product, naming applications and AI systems, whether it's installed on a device or supplied as a service, and it applies to products placed on the EU market or put into service after 9 December 2026, the date by which EU countries must write it into national law. Liability is strict, so the injured person doesn't have to prove you were careless, but they do have to prove the product was defective, that they suffered damage and that the defect caused it. Two new rules change how that plays out for AI. A court can order you to disclose relevant evidence once the claimant has made a plausible case (Article 9), and if you don't, the product is presumed defective (Article 10(2)(a)). And where technical or scientific complexity makes proof excessively difficult, the court must presume defect, causation or both if the claimant shows they're likely (Article 10(4)). The Directive has limits: it compensates people, not companies, and only for death or personal injury (including medically recognised psychological harm), damage to property not used only for work, and destruction or corruption of data not used for professional purposes. Pure financial loss isn't covered. The separate AI Liability Directive was withdrawn in October 2025, so this is now the main EU no-fault route for harm from AI. In practice, what decides many cases will be what you can show your system did: which version was running, what it was given and what it produced.",
  "checklist": [
    "List which of your AI products and features are offered in the EU, and which will be placed on the market or put into service after 9 December 2026. A substantial modification to an older product after that date can bring it under the new rules.",
    "Keep a release history: which model and version, system prompt, tool set and safety settings were live in each release, and when each update went out. The Directive treats software updates and machine-learning behaviour as part of the product while it stays within your control.",
    "Keep per-run records for outputs that could cause harm: a hash of the input, the model and settings, a hash of the output and the time. If you're ordered to disclose evidence about one incident, that's what you'll need to find.",
    "Be ready to produce evidence in a form a court can follow. Article 9(6) lets courts require disclosed evidence to be presented in an easily accessible and easily understandable manner.",
    "Separate what you'd disclose from your trade secrets. Disclosure is limited to what's necessary and proportionate, and courts can protect confidential information, but training data, algorithms and monitoring data could still be in scope.",
    "Keep shipping security fixes. The defence that a defect arose after release isn't available where it comes from software, including updates or a lack of updates needed to keep the product safe, that's within your control.",
    "Map your supply chain: model provider, your app, integrators, resellers and any EU importer or authorised representative. Distributors that can't name the responsible operator within a month of a request can be held liable themselves.",
    "Review contracts with model and tool providers for who bears what. Where several operators are liable for the same damage, the one that pays can seek recourse from the others under national law.",
    "Keep records for as long as a claim can be brought. The Commission says operators stay liable for 10 years after the product is placed on the market (25 years in some health cases), and victims have 3 years to bring a claim.",
    "Watch the national law in each country you sell into. Germany's government published its draft bill on 17 December 2025, and details can still vary by country. Talk to a lawyer about your products."
  ],
  "sections": [
    {
      "heading": "What the Directive covers",
      "points": [
        "The Directive's recitals say software, such as operating systems, firmware, computer programs, applications or AI systems, is a product, irrespective of whether it is stored on a device, accessed through a communication network or cloud technologies, or supplied as software as a service. The recitals also say information itself isn't a product, so the rules don't apply to the content of digital files such as media files or e-books, or to the mere source code of software. How that line applies to an AI system's outputs hasn't been tested in court.",
        "Article 2 says it applies to products placed on the market or put into service after 9 December 2026, and doesn't apply to free and open-source software developed or supplied outside the course of a commercial activity. Products placed on the market earlier stay under the 1985 Directive.",
        "Article 6 limits compensation to death or personal injury, including medically recognised damage to psychological health; damage to property, except the defective product itself and property used exclusively for professional purposes; and destruction or corruption of data not used for professional purposes. The Commission notes that the Directive doesn't cover claims where the victim is a company, though some countries have similar rules for companies.",
        "When judging whether a product is defective, Article 7 tells courts to consider all circumstances, including the effect on the product of any ability to continue to learn or acquire new features after it's placed on the market, and, where the manufacturer keeps control after release, the moment the product left that control."
      ]
    },
    {
      "heading": "How disclosure and the presumptions work",
      "points": [
        "Under Article 9, once a claimant has presented facts and evidence sufficient to support the plausibility of the claim, a court can order the defendant to disclose relevant evidence at its disposal. The defendant can ask for the same from the claimant. Courts must keep disclosure to what is necessary and proportionate and can protect trade secrets.",
        "Article 10 keeps the burden of proof on the claimant, then adds rebuttable presumptions. Defectiveness is presumed if the defendant fails to disclose relevant evidence as ordered, if the product breaks mandatory safety requirements meant to protect against that risk, or if the damage came from an obvious malfunction during reasonably foreseeable use. Causation is presumed once a defect is established and the damage is of a kind typically consistent with it. Where the claimant faces excessive difficulties, in particular due to technical or scientific complexity, the court shall presume defect, causation or both if the claimant shows it is likely. The defendant can rebut any of these.",
        "Freshfields, writing about Germany's draft law in January 2026, notes that under the draft, failing to comply with a disclosure order presumes a defect regardless of whether the defendant was at fault, and that disclosure could conceivably extend to algorithms, training data or product monitoring data for AI products.",
        "Article 11 keeps a development-risk defence, for defects the objective state of scientific and technical knowledge couldn't reveal while the product was within the manufacturer's control, and lets countries limit it under Article 18."
      ]
    },
    {
      "heading": "What happened to the AI Liability Directive",
      "points": [
        "The Commission proposed a separate AI Liability Directive in September 2022, with its own disclosure rules and a presumption of causality for fault-based claims. It listed the proposal for withdrawal in its February 2025 work programme, saying no agreement was foreseeable, and the withdrawal was published in the Official Journal on 6 October 2025. The Commission said it would assess whether to present a new proposal or take another approach.",
        "That leaves the Product Liability Directive as the EU-wide no-fault route, with fault-based claims about AI still governed by each country's own law."
      ]
    },
    {
      "heading": "Why run records decide these cases",
      "points": [
        "Both sides of a claim will turn on the same facts: what the system was given, which version answered and what it produced. A claimant usually has only a screenshot. If the company can't produce its own record of that run, it may face the presumption that follows a failure to disclose, or a court presuming defect because the system is too complex for the claimant to explain.",
        "A record made at the time, with a hash of the input and output and the model and version, lets you show what happened without handing over the whole system. It doesn't decide whether the output was defective; it fixes the facts the argument is about."
      ]
    }
  ],
  "checks": [],
  "ask_rightshold": {
    "start": "https://www.rightshold.com/start?ref=seo",
    "mcp_endpoint": "https://www.rightshold.com/mcp",
    "ask": "Record a signed receipt for this production answer from our app: a hash of the user's input, a hash of the exact output we returned, the model and the app release it ran on, so we can show later what this version produced.",
    "mcp_call": {
      "tool": "record_ai_run",
      "arguments": {
        "model": "<model id and dated version>",
        "provider": "<model provider>",
        "prompt_sha256": "<sha256 of the exact input sent to the model>",
        "output_sha256": "<sha256 of the exact output returned to the user>",
        "params": {
          "app_release": "<your release tag>",
          "system_prompt_sha256": "<sha256 of the system prompt>",
          "safety_config_sha256": "<sha256 of your safety settings>",
          "market": "EU"
        },
        "ran_at": "2026-11-10T12:00:00Z"
      }
    },
    "also": [
      "Needs an API key. Send hashes only: Rightshold doesn't need the user's input or your output, so no personal data has to leave your systems. The receipt is Ed25519-signed, gets an issued_at time from Rightshold's clock and goes on Rightshold's append-only ledger, whose blocks are also anchored to Bitcoin through OpenTimestamps.",
      "verify_ai_run is free and needs no key: you, your lawyer or a court-appointed expert can send the receipt and signature plus the saved output to check it matches the recorded hash.",
      "In recorded mode the receipt marks the run as reported by you. It shows which hashes and release you recorded and when, not that the output was safe or that the named model produced it.",
      "Record one receipt per release too, with prompt_sha256 set to a hash of the release manifest, so each per-run record can be tied to the exact version that was live."
    ],
    "scope": "Rightshold doesn't assess whether a product is defective, decide who is liable or advise on any country's transposition of the Directive. A receipt proves which hashes were recorded and when Rightshold recorded them. Article references are to Directive (EU) 2024/2853 as published; national laws implementing it may differ in detail. Not legal advice; talk to a lawyer about your products."
  },
  "sources": [
    {
      "title": "EUR-Lex: Directive (EU) 2024/2853 on liability for defective products",
      "url": "https://eur-lex.europa.eu/eli/dir/2024/2853/oj/eng"
    },
    {
      "title": "European Commission: Liability for defective products (software and AI systems, time limits, right to request evidence)",
      "url": "https://single-market-economy.ec.europa.eu/single-market/goods/free-movement-sectors/liability-defective-products_en"
    },
    {
      "title": "Gibson Dunn: EU Product Liability Directive: Responding to Software, AI and Complex Supply Chains (March 23, 2026)",
      "url": "https://www.gibsondunn.com/eu-product-liability-directive-responding-to-software-ai-and-complex-supply-chains/"
    },
    {
      "title": "Freshfields: The disclosure obligation under the new Product Liability Directive (January 16, 2026)",
      "url": "https://www.freshfields.com/en/our-thinking/briefings/2026/01/the-disclosure-obligation-under-the-new-product-liability-directive-balancing-evidentiary-hardship-and-the-protection-of-corporate-information"
    },
    {
      "title": "CMS: The new EU Product Liability Directive (EU) 2024/2853 (Article 11(2) and software updates)",
      "url": "https://cms.law/en/int/publication/the-new-eu-product-liability-directive-eu-2024-2853"
    },
    {
      "title": "EUR-Lex procedure 2022/0303/COD: AI Liability Directive (proposal withdrawn)",
      "url": "https://eur-lex.europa.eu/procedure/EN/2022_303"
    },
    {
      "title": "EAPIL: European Commission Withdraws Proposals on Assignments of Claims and AI Liability (October 9, 2025)",
      "url": "https://eapil.org/2025/10/09/european-commission-withdraws-two-proposals-assignments-of-claims-regulation-and-ai-liability-directive/"
    }
  ],
  "related": [
    {
      "title": "How long do you have to keep AI agent logs under the EU AI Act?",
      "url": "https://www.rightshold.com/answers/how-long-do-you-have-to-keep-ai-agent-logs-under-the-eu-ai-act"
    },
    {
      "title": "How to prove which model version, prompt and settings produced an AI output",
      "url": "https://www.rightshold.com/answers/how-to-prove-which-model-version-prompt-and-settings-produced-an-ai-output"
    },
    {
      "title": "Can you get an old AI API response back from the provider to settle a dispute?",
      "url": "https://www.rightshold.com/answers/can-you-get-an-old-ai-api-response-back-from-the-provider-to-settle-a-dispute"
    },
    {
      "title": "Verified AI Runs",
      "url": "https://www.rightshold.com/verified-ai-runs"
    }
  ],
  "computed_from": "Curated guidance; license verdicts computed from Rightshold's license profiles at render time. Not legal advice.",
  "updated": "2026-11-10"
}